Rule of Law

Goverment power is not unlimited e.g Belmarsh Case in 2004 ended indefinte detention.

To protect the rule of law:

Judges should be Independant

Access to court should be free

Court proceedings should be open and fair e.g Man has the right to know his accuser

Possible introduction of sharia law in the UK highlighted equal application of the law would be incompatible with the principle of the rule of law.

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Functions of Judges

Judges.....

Have the responsability to ensure a fair trial

Must interperate the law when sentancing on the basis of

common law

case law

or statutory guidelines e.g starting point of 10 years for murder

Have a quasi-political role and performe judicial review e.g Belmarsh Case

May also be final arbiters of constitution during disputes e.g issues such as Human rights/ civil liberties

Preside over judicial inquires e.g Bloody Sunday

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Judiciary Remaining Neutral

JudicialNeutrality - The principle that members of the judiciary should avoid allowing their political ideas to affect thier decisions in cases. It also implies that judges should not show any sympathetic bias towards or against any group in society

Any political affiliations are not supposed to interfere with the facts of the case. judges are not blocked from membership to parties or pressure groups, but any conflict can result in cases overturned. e.g (Lord Hoffman's member of amnesty Intl = rejection of ruling on the Chilean Dictator)

Senior Judges expected to see beyond prejudice ideas based on ignorance.

J.A.G Griffith criticised judges for their homogeneity and questioned would people prefer to be judged by someone of the same race/gender/class as ourselves but had no understanding of law?

A free & fair society has allows external groups to campaign for someone for retrial. Unsound convictions often get media and pressure group support allowing quashing of convictions after retrial e.g Belmarsh

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Judiciary Methods of Protecting Civil Liberties

Civil Liberties - The rights & freedoms of citizens in relation to the state and its laws. These include rights to vote or stand in office, freedom of expression and the right to a fair trial.

Declare actions as Ultra Vires -Through the power of judicial review judges can declare an unfair use of powers by public officials/bodies

Independence of Judges from HofP and Executive

The gov retains control of the legal system through the justice ministry. this does not show direct control but suggests a good deal of interference.

Increase in political dialogue between politicians and judges over issues such as sentencing and protection of rights.

Appointments handled by JAC however the PM has final Veto over these decisions and therefore remains a theoretical problem of interference.

Fussion of roles carried out by members of Gov Attorney General who serves as legal adviser to the government. and until the constitutional reform act (2005) the Lord Chancellor was in all areas of HofP.

Judiciary inquires much more likely to rule in favour of the government, 9/10 it will go in favour of the government and high profile cases occasionaly shadow this discrepancy. Critics believe they will never reveal more than minor embarrassment for government.

e.g ASBOs and DNA all UK court rulings over turned by Strasbourg

Kettling in 2001 was not a breach of the right to liberties

Stop and Search under terrorism Act not breach of Human Rights

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To what extent are Judges Neutral

The Judiciary is not free from social/political bias......

Homogeneous collection of attitudes beliefs and principles within the judges e.g on the whole male, white, public school, and Oxbridge educated.

The opening up of judiciary has been described by the only black high court judge as 'woefully slow'. Since 2004 only 2 new women appointed and none were black.

Social bias is further evident where there is a clash between property rights and civil rights, thereby keeping political power in the hands of those who have it.

Judges' known membership of societies such as the Freemasons may make them biased in case involving the police. Senior judges may share prejudice which results in miscarriages of justice such as the Guildford 4 and the Birmingham 6.

Evidence of bias against women found with avg sentence for rapists being 4 years and guide lines recommending 5 years.

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To what extent are Judges Neutral

The Judiciary is free from social/political bias......

The make-up of judiciary mirrors existing power structures such as the executive therefore cannot be blamed on the judiciary. Only 3 PMs in the past 100 years have not come from Oxbridge.